Midwives, Abortion, and the Offences Against the Person Act of 1861

Under the Offences Against the Person Act of 1861, any pregnant woman who acted with intent to “procure her own miscarriage” was guilty of a felony and could, if convicted, be sentenced to “penal servitude for life.” This same law that punished women who attempted to rid themselves of an unwanted pregnancy also punished the nurses and midwives who were frequently engaged to assist them. In most cases, it was impossible to enforce the law. However, when a woman died as a result of complications following an abortion, the person who had performed the procedure could be charged with murder and even sentenced to death.

But though a midwife who had performed an “illegal operation” resulting in her patient’s death could technically be found guilty of willful murder, the most common verdict was one of manslaughter, resulting in a sentence of anywhere from a few months to several decades of penal servitude.

A Midwife Going to a Labour
by Thomas Rowlandson, 1811.
(Wellcome Library CC By 4.0)

For example, in 1887, a midwife and lady’s nurse named Elizabeth Potts was charged with causing the death of “Paddington shop-girl” Elizabeth Culling, on whom she had performed an “illegal operation.” Miss Potts was subsequently found guilty of manslaughter and sentenced to fifteen years penal servitude. While in 1891, a nurse by the name of Dorothy Davis was found guilty of manslaughter and sentenced to twenty years penal servitude as a result of performing an “illegal operation” on Annie Simpson, who later died as a result of the procedure.

Some judges disliked going through the motions of what they termed “sham” murder trials. An April 1897 edition of the Lancashire Evening Post reports on the critical remarks of Justice Wills at the Manchester Assizes in relation to the murder charge levied again midwife Sarah Jane Cook. As the article states:

“Technically, if death results from an illegal operation, it was murder on the part of the person who performed it. But it was extremely unsatisfactory to his Lordship to have to try a charge of murder, with all the solemnity attending it, and with the painful solemnity of passing sentence of death in case of conviction, when everybody knew the whole thing was a sham, because it was as certain as he occupied a seat on that bench that no such consequence would follow in this case.”

Other judges had no issue with presiding over the murder trials of midwives—and no difficulty passing down death sentences that would later be reduced to terms of imprisonment. In February of 1899, a sixty-seven year old nurse by the name of Jane White was indicted for the murder of Alice Birmingham. Miss White had allegedly performed an “illegal operation” on Miss Birmingham which resulted in her death. In addition, certain instruments had been found in Miss White’s coal cellar which led the prosecution to argue that Miss White had been “guilty of illegal acts” towards other women as well. The jury deliberated for some time before finding Miss White guilty of all charges. The judge sentenced her to death.

As illustrated in the case of Miss White, mere possession of “certain instruments” was a crime in itself under the law. However, there were other ways that midwives could assist in helping women procure an abortion. Victorian midwives commonly offered a variety of oral abortifacients. These preparations were advertised in local papers, usually under the guise of treatments for vague sounding “feminine ailments.” One advertisement in the 1898 edition of the Leeds Times refers to a “certain mixture for obstructions and irregularities” sold by a midwife named Mrs. Dameran. The advertisement even contains testimonials of women who have used this mixture in the past, with one stating:

“Madam, I am glad to be able to report that the last two doses have had the desire [sic] effect. I shall recommend your remedy to all my married friends. I think it is excellent, and should I be in difficulty again myself, should at once apply to you.”

Though the sale of abortifacients was against the law, there was little that could be done to enforce it. For one thing, these sorts of advertisements were sufficiently ambiguous, with most appearing to be offering treatments for menstrual cramps or other feminine maladies. For another, the substances—such as lead plasters and juniper oil—were often quite harmless in and of themselves. Still, everyone knew what the midwives were selling in these adverts and, in some cases, the ladies who purchased the concoctions advertised found themselves vulnerable to more than criminal prosecution.

Abortifacient Advertisement, Leeds Times, April 9, 1898.

In her book A Visitor’s Guide to Victorian England, author Michelle Higgs relates an 1898 blackmail case involving women who purchased abortifacients via a newspaper advertisement:

“In 1898, a sensational blackmail case revealed that the Chrimes brothers from London had extorted money from female customers who had bought their (supposed) abortifacient pills. They sent letters which threatened to tell the authorities that the women had committed an act punishable by penal servitude, unless they paid £2 2s (two guineas). Twelve thousand women were contacted, indicating how widespread the practice was, and within three or four days, £800 had been paid to them.”

These advertisements, which not only offered “feminine mixtures,” but sometimes also offered the services of the midwife herself, came under intense criticism whenever a woman died as a result of attempting to procure an abortion. An October edition of the Dundee Post reports on a coroner’s jury at Westminster which returned a verdict of willful murder against a German midwife named Ernestine Katz. Katz was alleged to have caused the death of a servant girl named Kate Kennedy. As the article states:

“The evidence went to show that deceased, seeing an advertisement in a newspaper, went to the accused’s house, where an illegal operation was performed. Blood poisoning followed, and Kennedy died in St. George’s Hospital. The jury added that newspapers should observe more caution in the insertion of such advertisements.”

For Victorian women who were poor and desperate—whether they needed help with delivering a child or with procuring an abortion—the services of a midwife were invaluable. For many doctors, however, midwives were seen as a threat. The medical profession was a crowded one and the services of midwives were not only less expensive and more readily available, but they were often more tempting, as midwives frequently offered what historian Lionel Rose refers to as “supplementary services.”

Doctors of that era were almost uniformly against abortion. In fact, medical opinion played a significant role in influencing the severity of Sections 58 and 59 of the Offenses Against the Person Act of 1861. But their position on abortion had as much to do with self-interest as it did with concern for unborn children. As author John Keown states in his 2002 book Abortion, Doctors, and the Law:

“There is substantial evidence that medical men were concerned not only for the welfare of the potential victims of abortion but also to further the process of establishing and consolidating their status as a profession.”

Decreasing the number of practicing midwives played no small part in this consolidation of the medical profession. Around the same time that the 1861 Offenses Against the Person Act came into being, doctors began to press for midwives to be registered and “compulsorily qualified.” As Rose explains:

“…a higher caliber, and therefore scarcer breed of midwives, subordinated to doctors, would be less of an economic threat…”

The Obstetric MD, Coloured Lithograph, British College of Health, 1852.
(Wellcome Library CC BY 4.0)

The registration requirement for midwives was finally realized in the 1902 Midwives Act. The law now required that all new midwives had to be “qualified.” As for the “unqualified” women—many of whom had decades of experience—Rose states that they were only allowed to continue practicing until 1910.

The various medical and legal mechanisms of the Victorian era had little effect on the number of “illegal operations” performed by nurses and midwives. According to Rose, abortion in England continued to be “very widely practiced,” with many women not even realizing that it was illegal. As a result, midwives—and occasionally even doctors—were routinely arrested, charged, and harshly sentenced under the terms of the Offenses Against the Person Act of 1861. If you would like to read the Act in its entirety, you can do so HERE.

*Author’s Note: The Offenses Against the Person Act of 1861 was the first abortion statute in England that dealt with the liability of the woman on whom the procedure was performed.

Mimi Matthews is the author of The Pug Who Bit Napoleon: Animal Tales of the 18th and 19th Centuries (to be released by Pen and Sword Books in November 2017). She researches and writes on all aspects of nineteenth century history—from animals, art, and etiquette to fashion, beauty, feminism, and law.

Another wonderfully fascinating post as usual, Mimi. Reading the advertisement was especially poignant. The risk to both parties was staggering if their actions were discovered. It must have been hell. There’s a brilliant film about a woman who performed abortions called ‘Vera Drake’, starring Imelda Staunton. I don’t know if you’ve seen it, but it’s incredibly powerful.

Thanks so much, Sarah :) And thanks for the movie recommendation! There really was a lot of danger for the midwives and the women themselves. I couldn’t fit this in the article, but in a lot of the cases I found, the young woman procuring an abortion was a servant, a shop girl, or a school teacher. The types of women who, if they were found to be pregnant, would have lost their jobs and ended up completely destitute. I can’t imagine how they must have felt!

… and Trump would like it brought back in America. My father was always very much in favour of legal safe abortion; when he was doing his national service, his [then] best friend got his girlfriend pregnant, and took her to an illegal abortionist [this being about 1950] and she died. Dad never spoke to his former friend again once he found out what he had done, because he felt if he’d been so careless he should have married her. It was not her idea to have an abortion, Charlie made her do it, and one does wonder how many… Read more »

Very good points, Sarah. I think in many cases, there was probably pressure from the man involved. Interestingly enough, in one of the cases I read in a 19th century newspaper, there was a husband mentioned as being involved in the “illegal operation” somehow. It said that the midwife was arrested and charged with murder and the husband was “severely scolded” (or something to that effect). I’m going to have to try and find that case again!

Very small point but abortion is still illegal in the UK under the OAPA (offences against the person act). The 1967 Abortion Act outlines in what circumstances someone will have a defence to NOT be prosecuted under the OAPA e.g. the procedure must be done at a licensed premises, two doctors must agree that one of the four reasons given in the act have been met etc. I love the links to real cases including in the comments. Abortion laws so often get discussed in the abstract and it’s one thing in life that is certainly not abstract in the… Read more »

Thanks for commenting, Heidi :) I’m so glad you enjoyed the article. Those four reasons you mention that act as defenses to a criminal charge under the Offense Against the Person Act are why in the author’s note of this article I put that it is now legal in some situations. It is oversimplifying it, I know, but it was my lawyerly attempt at explaining it to a lay person in a one sentence postscript. I’ve struck that part off now so it won’t confuse people.

That is definitely a good thing! And the reputation of midwives has certainly come a very long way. During my research, I came across some grim images of midwives in the Middle Ages being burned as witches! As female healers and women with a great deal of knowledge, they have had a tough time in history.

The war against abortion in the USA was intimately connected to a gendered economic war against midwives waged by the newly formed American Medical Association contending with a glut of male medical doctors produced by the rise of medical schools. Only in the mid 19th century, pushed by the AMA, did churches become involved in what had been a private, and routine, matter among women.

That’s very interesting, Grace. In 19th century England, it was definitely connected to the economic self-interest of doctors. Some of the quotes I found from 19th century doctors re: midwives, were incredibly harsh.

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